Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
I'm not one to parse terms.
Yeah, you are. But in this case you aren't parsing them because you have no facts and no language to parse. You've got nothing.
Grier termed it as a "blockade de facto" but cast the question in this manner (and answered in the affirmative): "Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States?"
A blockade of a foreign port constitutes an act of war. When Lincoln shut off shipping in certain ports, in certain insurrectionist southern states, he was not dealing with a "foreign" country.
Grier's quote refutes you. The minute you begin invoking international law, you concede instantly that you are in fact dealing with countries that are independent de facto, which is all that is necessary to establish a natural-law right. The Southern States were independent, and the writ of the United States ran no longer, de jure because the People of those States had taken them out of the Union, de facto by the interposition of General Beauregard's Army of Northern Virginia and the People in arms as the Militia.
Again, they were not "in armed rebellion against the Government" of the United States. They were no longer in the United States, and could therefore not possibly "rebel" against the United States Government.
And yes, contra you notwithstanding, Lincoln was dealing with a foreign country. The People of the South had the right and power to make him a foreigner in Dixie, and they did.
[You, quoting me] "However you look at it, Lincoln broke the law and ruled as a despot, while levying war on the Southern States and their People, some of them even before they'd left the Union."
I look at it the same way the Court looked at it, and similarly conclude that the President was fully within his rights.
You are wrong, and by now you know it.
Nor does a state's purported status in the Union make any difference.
It makes all the difference in the world. It makes the acts of the Peoples of the Southern States ultra vires the Supreme Court to rule on their independence or sovereignty, since they were no longer under the U.S. Constitution from which they had explicitly withdrawn, and Lincoln had no warrant or power to deal with them except as foreign States.
Lincoln was obligated to fight insurrection everywhere within the Union. This included places like Virginia, between the time the legislature voted secession, and the people voted in the referendum.
Insurrection, yes. Secession, no. He had no authority, no power, and no right to oppose the People on the matter of their continuation in the Union. He had no more power to compel South Carolina to stay, than he had to order Massachusetts to leave.
I read the "feature article" for this thread, and recall the earlier threads. Where is the "warrant"? Where is the record of the "warrant"? The "Taney arrest warrant" is properly classified as Civil War apocrypha.
Stop it. You are blowing smoke now, there is abundant and satisfactory evidence that the warrant existed, and that Lincoln gave it to Lamon to execute on the person of Chief Justice Taney. Your continuing to demand increasing standards of proof is effective of one end only, which is to show your bad faith in argument. Stop it.
Taney was spoiling for a fight with the Lincoln administration.
Irrelevant. Lincoln issued a warrant for Taney, not the other way around. I don't care how much of a humbug Taney had been in the Jackson Administration, hauling water for Old Hickory in the bank fight. I don't care how morally wrong everyone agrees he was in Dred Scott. Taney isn't the issue. Lincoln's tyranny is the issue.
It may be that Taney also utilized "selective blindness" to deny insurrection existed.
Taney isn't the issue. Lincoln's actions are the issue.
Modern day scholars, such as Farber and Jaffa, are not the only people who contend that Lincoln was within his constitutional rights to ignore Taney. At the time, the leading Constitutional scholar in the Congress and a leading academic scholar both sided with Lincoln.
So what? They were wrong, and opining on matters in which their opinions are flatly contradicted by the black-letter words of the Constitution. You don't need two law degrees to know that these guys were homering for Lincoln. You only need to know how to read English. That is what written constitutions are for.
Lincoln himself presented Congress with his rationale and Congress chose not to condemn his actions.
Lincoln was a tyrant. Show me an instance of Congress's picking a fight with Lincoln, about anything, between 1861 and 1865. Show me the appropriation bill that failed. Show me a Lincoln legislative initiative that was defeated. The entire government was in his hands, and the District of Columbia was an armed fortress. Congress knew what he was. That is why they never condemned him.
Moron, yourself. You really want to rehash the Texas thread again? You were confuted, refuted, defeated, and trampled.
The United States Supreme Court has no power to rule on the Sovereignty of foreign States, which is what Lincoln gofer Chase did when, ultra vires, he bootlessly pretended to review the acts of the People of Texas.
Appeal to force, and teleology. "We won, so we must be right." The "ignobly" is your own cheesy, unjust characterization that shows your venom again.
Same thing. Invalid form of argument, and fallacy. You specialize in this?
[capitan_refugio, being mulish and stupid] No.
The correct answer is yes.
Gladly. Davis wanted a supreme court and publicly called for one in his major addresses to Congress. The States Rights faction in the CSA Senate, however, feared that the federal judiciary would be used to usurp the judicial power of the states, who were presently hearing cases in its place. So they dragged their feet on the bill that set up the supreme court as was their constitutional right.
It's typical of the slothful reasoning people will endorse when their entire positions are built around semantical convenience.
I seem to recall an exchange a while back in which I pressed you to state something critical of Saint Abe. You couldn't do it.
Heck, the article on this thread reveals a very unpleasant but indisputable fact about Saint Abe's intimidation of judges. You know it to be true as well yet you can't even criticise him over that. Instead you make unsubstantiated slanders on the judge.
Your venom spews in one direction on this and all other civil war forums, capitan. Time and time again it leads you to celebrate, promote, defend, and excuse away virtually every single action ever committed by the north no matter how extreme or egregious. At the same time you cannot even bring yourself to admit simple, factually documented matters such as the confederate defense of Texas for fear that it will make the other side to your own look like it achieved something. No matter the incident, no matter the circumstance, and no matter the facts of the situation, you exhibit nothing but a full fledged love affair with all things northern. Even worse, you contrast this affair with a severe biliac dyscrasia exhibited in all matters involving the south.
Taiwan, as you may know, is openly claimed by the People's Republic of China as a province, though they have virtually no government control of it. At the same time, Taiwan itself claims to be a sovereign entity, the Republic of China.
Most of the world's nations (in large part thanks to Jimmy Carter) do not recognize this latter claim and do not give Taiwan diplomatic recognition as a nation (though many still engage in consular relations with Taiwan not unlike the non-recognizing European nations who nevertheless recieved and dealt with CSA diplomats). Also not unlike the CSA, Taiwan does have diplomatic recognition from a handful of small nations including
The Vatican
St. Kitts and Nevis
Burkina Faso
El Salvador
Guatemala
Swaziland
Panama
and a few others, most of them south pacific island countries...not exactly any superpower by normal standard, but neither is it void of recognition and it does have some very respectable names on its short list such as the Vatican. So answer me this, capitan. Is Taiwan a nation? If so, how was this decided? And if not, on what basis?
I'm a Yankee, native New Yorker, now residing in Arkansas. I do not mind talking the slavery issue. Slavery was wrong, it was always wrong, and never could be justified. It does not speak to the legal issue of secession. If secession was a legal right, it was no less a right whether its purpose was good, bad, or dumb.
States rights appear to be part of the deal when the Constitution was ratified, and the all-powerful central government clearly was not.
All the states agreed to the Constitution, and whether repugnant or not, the Constitution recognized and protected the institution of slavery. It's not something to brag about, but it is a fact. It is a significant legal fact.
Yankees do not like to talk about the system of "gradual emancipation" which really acted as "gradual ethnic cleansing" as Blacks were not freed but sold to southerners. And then there were all the Black Laws to keep Blacks out of the northern states.
Nobody has any bragging rights in the treatment of Blacks or Indians.
Nor did I refer to commonly held criteria as "immutable."
The China/Taiwan is not any sort of analogy for the CSA. To answer whether Taiwan is a separate nation from China, or more pointedly, whether the Chicoms are a legitimate government at all, you need to consider all of the factors and the governmental history. The "People's Republic" represent a communist insurgency that succeeded - at least on a military level. My personal opinion is that the Nationalist government on Taiwan is the "rightful" government of all of the Chinese people.
Also telling is that four days before he died, Lincoln proclaimed that he had blockaded the ports and proclaimed that he was then changing it to a "Closing of the Ports."
See OFFICIAL RECORDS: Series 3, vol 5, Part 1, Page 107 [ LINK ]
Which he was forbidden by the Constitution to do. Especially ironic since, by the time he took the action, he was in substantial control of the ports being "closed".
The man just did it like he wanted to, and yet you can't get the other side in this hoedown to admit that he was a military strongman. A man on horseback. A tyrant.
He still won't admit that the warrant existed! Did you see his latest piffle about that? Now he wants a copy of the warrant! -- no,wait, a notarized copy of the warrant! Oh, screw, let's come right down to it -- if TexConfederate1861 produced the warrant itself, capitan_refugio would call it a forgery!!!
At the same time you cannot even bring yourself to admit simple, factually documented matters such as the confederate defense of Texas for fear that it will make the other side to your own look like it achieved something.
Such comprehensiveness in bias, embracing all spheres of the subject under discussion, is usually known by the label of totalism.
Funny how the Lincoln apologists, as opposed to the Lincoln biographers and historians like Billy Herndon, tend toward an inflexible and indefatigable view of Lincoln and the Civil War. One gets the impression that they are as totalitarian as the Marxists and National Socialists they happen to agree with.
Or maybe they don't, after all, just happen to agree with them. Do you suppose their agreement is.......organic?
Yes, I remember. And I remember that I said, like challenges to post anything positive said about Lincoln before he did, it was unworthy of reply.
In this case, however, I will say that Lincoln's forebearance for incompetent general's added to the duration of the war. Part of that failing was undoubtedly political, as the Northern effort in the war was very much a "coalition" effort of federal forces and loyal state volunteers. Sometimes Lincoln had to accept incompetence in leadership as part of the overall effort. The worst of the offenders usually ended up releived of combat command and posted away from the primary war zone.
"Your venom spews in one direction on this and all other civil war forums, capitan. Time and time again it leads you to celebrate, promote, defend, and excuse away virtually every single action ever committed by the north no matter how extreme or egregious. At the same time you cannot even bring yourself to admit simple, factually documented matters such as the confederate defense of Texas for fear that it will make the other side to your own look like it achieved something. No matter the incident, no matter the circumstance, and no matter the facts of the situation, you exhibit nothing but a full fledged love affair with all things northern. Even worse, you contrast this affair with a severe biliac dyscrasia exhibited in all matters involving the south."
I don't share your love of treasonable activity.
Not originally addressed to you, but thank you for the reply. So it is then fair to say, that the government confederate constitution), was never fully organized.
You asked for a "yes or no" answer. I gave it to you. Do you want an explanation?
The post was not directed to you, but rather to the poster who opined to me, "Just how stupid are you," while spewing indefensible garbage. I don't mind rehashing the validity of secession, ever.
Texas v White remains the last word on the validity of southern secession.
"You were confuted, refuted, defeated, and trampled."
You are confusing me with the Confederacy.
I would refer you to William C. Davis's An Honorable Defeat: The Last Days of the Confederate Government. The title of Davis's book reflects the hope of John Breckinridge, not the ultimate result.
It is fair to say that the disintegration of the Confederacy and the government, the treachery of the Governors of several of the constituent states, and the flight of the principle officers all lend themselves to the fair evaluation that the end of the CSA was dishonorable and ignoble.
On the other hand, I would not use those terms to describe the honorable conduct of Robert E. Lee, when faced with the inevitable.
You are in denial. As posted to another on this thread, the territorial control of the Confederate government consistantly shrunk during the duration of the war.
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